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Country Review Report of Belgium Country Review Report of Belgium Review by Mexico and the Netherlands of the implementation by Belgium of articles 15 - 42 of Chapter III. “Criminalization and law enforcement” and articles 44 - 50 of Chapter IV. “International cooperation” of the United Nations Convention against Corruption for the review cycle 2010 - 2015 1 I. Introduction 1. The Conference of the States Parties to the United Nations Convention against Corruption was established pursuant to article 63 of the Convention to, inter alia, promote and review the implementation of the Convention. 2. In accordance with article 63, paragraph 7, of the Convention, the Conference established at its third session, held in Doha from 9 to 13 November 2009, the Mechanism for the Review of Implementation of the Convention. The Mechanism was established also pursuant to article 4, paragraph 1, of the Convention, which states that States parties shall carry out their obligations under the Convention in a manner consistent with the principles of sovereign equality and territorial integrity of States and of non-intervention in the domestic affairs of other States. 3. The Review Mechanism is an intergovernmental process whose overall goal is to assist States parties in implementing the Convention. 4. The review process is based on the terms of reference of the Review Mechanism. II. Process 5. The following review of the implementation by Belgium of the Convention is based on the completed response to the comprehensive self-assessment checklist received from Belgium, and any supplementary information provided in accordance with paragraph 27 of the terms of reference of the Review Mechanism and the outcome of the constructive dialogue between the governmental experts from Mexico and the Netherlands, by means of telephone conferences and email exchanges and involving the following experts: Belgium: Ms. Nele Fraeyman Mexico: Dr. Ruben Martin Olvera y Aguilar Mr. Alejandro Eduardo Santana Pedraza Ms. Azyadeh Carla Bravo Joseph The Netherlands: Mr. Bart Runneboom Ms. Annemarie Benthem Ms. Hellena Donner Ms. Danielle Goudriaan Ms. Marieke van der Burg Secretariat: Ms. Jennifer Sarvary-Bradford Ms. Tatiana Balisova 6. A country visit, agreed to by Belgium, was conducted in Brussels from 1 to 3 June 2 2016. During the on-site visit, meetings were held with the Ministry of Justice, the Federal Prosecutors Office, the General Prosecutors Offices of Ghent and Liège, the Court of First Instance of Mechelen, the Central Organ for Seizure and Confiscation, the Central Service against Corruption at the Federal Police, the Financial Intelligence Processing Unit, the Ministry of Budget,the Belgian Integrity Centre, Transparency International Belgium, ICC Belgium, the University of Ghent, Price Waterhouse Cooper and the Federation of Belgian Entertprises. III. Executive Summary Belgium 1. Introduction: Overview of the legal and institutional framework of Belgium in the context of implementation of the United Nations Convention against Corruption Belgium signed the Convention on 10 December 2003. Following the federal Parliament’s ratification, the law for its approval was signed by the King on 8 May 2007, allowing its entry into force on 28 November 2008. Subsequent to the approval of the community-level parliaments, Belgium deposited its instrument of ratification with the Secretary-General on 25 September 2008. Belgium is a federal parliamentary democracy under a constitutional monarchy and a federal state, composed of three communities and three regions. The communities and regions have the same standing as the federal authority and their legislation has equal force in law. While regions and communities to a large extent have devolved powers from the federal system, a certain number of laws, such as the Criminal Code (CC), the previous title of the Criminal Procedure Code (PT CPC), the Criminal Procedure Code (CPC) and the Anti-Money Laundering Law, are adopted at the federal level, but are applicable throughout Belgium. These laws, together with the Law on the Protection of Witnesses under Threat, the Law on Extradition and the Law on Mutual Legal Assistance form the anti-corruption legal framework in Belgium. The authorities with relevant anti-corruption mandates include the Central Office for the Repression of Corruption (OCRC) within the Federal Police, the Financial Information Processing Unit (CFI-CTIF), the Central Body for Seizures and Confiscations (COSC), the Federal Prosecutor’s Office and the Federal Public Service of Justice. Belgium is a member of the European Union, the OECD, the Council of Europe’s GRECO and FATF, among other international organizations. 2. Chapter III: Criminalization and law enforcement 2.1. Observations on the implementation of the articles under review Bribery and trading in influence (arts. 15, 16, 18 and 21) Active and passive bribery of public officials are criminalized (CC articles 246 and 247). The term “public official” is interpreted broadly and covers all persons who exercise public duties, including candidates for public functions who induce others to believe that they are in charge of these duties. Bribery committed by police officers, prosecutors, judges, arbitrators and jury members is considered an aggravating circumstance (CC arts. 248 and 249). All the Convention’s elements of active and passive bribery are present in the national definition. The definition explicitly covers third-party benefits. The “undue advantage” has a wide scope (CC art. 246) and includes any advantage, e.g. sexual favours, preferential treatment and symbolic and honorific advantages. 3 While there are no established rules in relation to gifts given to public officials, case law indicates that the threshold for what is deemed unacceptable could include gifts of nominal value. CC articles 246 and 247 cover both “wrongful” acts, i.e. acts outside of the official duties as well as “fair” acts, i.e. lawful actions that would have been carried out even in the absence of bribery. Active and passive bribery are seen as autonomous offences. CC article 250, read in conjunction with articles 246-249, covers active and passive bribery of foreign public officials and officials of public international organizations. Bribery in the private sector is criminalized (CC arts. 504bis and 504ter) and applies to, among others, the commercial sector, non-profit organizations, and volunteering and sports organizations. However, article 504bis limits the scope of application through the requirement that bribery be committed “without the knowledge and without the authorization, as the case may be, of the administrative board or the general meeting, the principal or the employer”. Trading in influence is partially criminalized (CC art. 247, para. 4), as only the use of influence by public officials is covered and does not extend to the private sector or the private sphere. The offence does not require the influence to produce the intended results. Money-laundering, concealment (arts. 23 and 24) Both money-laundering and concealment are criminalized (CC arts. 505 and 505bis, read with arts. 42 and 43bis on confiscation). Money-laundering is at times referred to as extended concealment. The CFI-CTIF was established as an administrative body through Law of 11 January 1993 on Preventing Use of the Financial System for Purposes of Money-Laundering and Terrorist Financing. Participation in and attempted money-laundering are covered by the general provisions of the CC (arts. 66 and 67). Any criminal offence according to Belgian legislation can constitute a predicate offence. Predicate offences committed abroad are subject to dual criminality. Nevertheless, Belgium always considers the underlying conduct in such cases. Despite the extensive reach of article 505 CC, in certain circumstances fiscal fraud is not criminalized and does not constitute a predicate crime. Self-laundering is criminalized. Embezzlement, abuse of functions and illicit enrichment (arts. 17, 19, 20 and 22) The CC provides for the crimes of embezzlement, misappropriation and other diversion of property by public officials in articles 240-245. Belgium relies on a wide definition of property, which includes, among others, funds, documents, titles and acts, and real estate assets. In addition to articles 240-245, article 491 is a general provision on embezzlement of goods. There is no specific provision on embezzlement of property in the private sector, but the conduct could fall within the scope of article 461 on theft and article 492bis on abuse of corporate assets. Abuse of functions or “concussion” is criminalized (CC art. 243). Provisions on confiscation, the abuse of power, taking interest and the abuse of trust by public officials are also relevant (CC arts. 42, 151, 245 and 491). Illicit enrichment is not codified in a stand-alone provision in Belgian law; however, CC articles 43quater and 246-251 cover property derived from a criminal act and criminalize unjustified enrichment. The Court of Audit (Court des Competes) receives parliamentarians’ asset declarations as well as those for high-ranking public officials (e.g. Ministers, etc.). Their family members have no disclosure obligation. 4 Obstruction of justice (art. 25) Obstruction of justice is criminalized through the CC provisions on false testimony and perjury (arts. 215-226), threats (arts. 327-330bis) and assaults on public officials (arts. 278, 279, 279bis and 280). Particularly relevant are articles 223 and 224 which criminalize bribery of witnesses, experts
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